Most of you already know that Title VII prohibits discrimination and retaliation in the workplace. What you may not know, is that although Title VII empowers the EEOC to enforce its provisions through litigation, it also requires the EEOC to “conciliate” prior to filing a lawsuit. This means the EEOC is required to make good-faith attempts to resolve discrimination cases before filing a lawsuit. There is general agreement between legislative and judicial authorities that informal conciliation is the preferred way to dispose of EEOC charges. Even so, the reason you may not have known about the conciliation requirement is because conciliation efforts by the EEOC are often deficient. Even when employers point out that the EEOC’s conciliation efforts were half-hearted at best, it can be tough, if not impossible, to get a case thrown out because the EEOC did make “enough” effort at conciliation.
In a recent Seventh Circuit case, E.E.O.C. v. CVS Pharm., Inc., 14-3653, 2015 WL 9239388 (7th Cir. Dec. 17, 2015), we saw a slightly different twist: the EEOC filed a lawsuit before making any conciliation efforts – none. And what’s more, the EEOC actually admitted it didn’t make any conciliation efforts. The EEOC was angling for a big win – a holding that, despite over forty years of precedent to the contrary, it no longer had to engage in conciliation prior to filing a lawsuit under Title VII. Fortunately, the Seventh Circuit affirmed the decision by an Illinois District Court holding the opposite of what the EEOC was hoping – that (of course) the EEOC was required to engage in conciliation prior to filing a lawsuit.
In this case, the employer, CVS, offered an employee a severance agreement in exchange for her resignation, which she accepted. Under the terms of the severance agreement, the employee received both money and extended benefits in exchange for a waiver of future claims against CVS. But, as all valid severance agreements do, the severance agreement contained specific exceptions which would allow the former employee to participate in a lawsuit brought by the EEOC. A month after she signed the severance agreement, the employee filed a discrimination charge with the EEOC.
Though the EEOC determined that it would not follow-through with the employee’s discrimination charge, it accused CVS of interfering with its employees’ right to file charges with the EEOC and participate in EEOC proceedings by using the severance agreement. The EEOC’s logic was completely twisted. It claimed an employee who was not versed in “legalese” may not be aware that there were exceptions to the agreement’s confidentiality provision and waiver provision which allowed the employee to participate in EEOC prosecutions. The EEOC’s argument ignored the fact that an employee who was not versed in “legalese” may not be aware of the presence of the waiver and confidentiality provisions in the first place. Second, CVS gave the employee plenty of time to have an attorney review the release and even advised the employee to do so; so, employees had every opportunity to have the provisions of the agreement explained. Finally, the EEOC’s position ignored the fact the severance agreement did not stop its own claimant from filing a charge.
The EEOC immediately notified CVS that it would proceed with filing a lawsuit and outlined its demands for a consent decree. CVS requested that the EEOC engage in conciliation and offered to amend the terms of the severance agreement so that it even more clearly informed an employee of its right to file a charge with the EEOC. The EEOC would not budge on its position, or talk about resolving the Charge; it subsequently filed a lawsuit.
It should be clear that this wasn’t the best case for the EEOC to hang its argument on. The Seventh Circuit opinion contained several footnotes suggesting that the EEOC would not have been able to show that the employer violated Title VII by offering the disputed severance agreement in any event. But under the facts as a whole, the EEOC lost its case before the Court even had to make it that far. The employer asked for, and received, summary judgment, based on the EEOC’s complete admitted failure to conciliate.
Whether it’s a question of what is acceptable to include in a severance agreement, or what to do if you receive a charge of discrimination, the St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.